The Form or Shape of Constitutional Interpretation

Author:Charles D. Kelso; R. Randall Kelso
Profession:Professors of Law

§ 6.1 Introduction to Defining Constitutional Interpretation. § 6.2 Treatment of Contemporaneous Sources of Interpretation. § 6.2.1 Treatment of Text. § The Debate Between Subjective versus Objective Interpretation of Text. § The Debate Between Literal and Purposive Interpretation of Text. § 6.2.2 Treatment of Context. § Treatment of Context: Restrictive versus Receptive... (see full summary)


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ß 6 1 Introduction to Defining Constitutional Interpretation

As discussed at ß 1.2.1, formal causes for Aristotle are the "form or definition" of the object to be studied. Thus, the "formal" cause of a "silver bowl" is the "shape" that the bowl is to take.1 With respect to constitutional interpretation, that shape depends upon how the formal constitutional doctrine is defined. This depends, in turn, on how an interpreter chooses to balance the various material sources of interpretation. This must be done for each material source: text, context, history, practice, precedent, and prudential considerations.

As will be seen, just as different makers of silver bowls may have different and distinctive shapes to their bowls, yet each represents a kind of bowl, unless it becomes so flat that the shape becomes a plate, or so round that it becomes a vase, different interpreters may choose to balance the material sources of interpretation somewhat differently, and yet within broad guidelines each represents a legitimate kind of constitutional interpretation, that is, is still a kind of bowl, not a plate or a vase. It should be noted that the intent in this Chapter is not to resolve the question raised by these interpretive differences of which interpretive theory should be adopted by the Court in some ultimate normative sense. Rather, the intent is to focus on the different choices that interpreters confront, to note how different judges in the formalist, Holmesian, instrumentalist, and natural law traditions have resolved these choices in different ways, and to note some strengths and weaknesses of each.

ß 6 2 Treatment of Contemporaneous Sources of Interpretation
ß 6 2.1 Treatment of Text
ß 6 2.1.1 The Debate Between Subjective versus Objective Interpretation of Text

For all judges and all styles of interpretation, the text of the Constitution is the starting point in determining the intention of the framers and ratifiers of the Constitution. As noted at ß 5.2.1, there is a debate within constitutional interpretation, as within statutory interpretation, whether text should be given a subjective or an objective interpretation.

The case for subjective interpretation is that it attempts to reflect accurately the actual subjective intent of the drafters of any instrument to be interpreted. That, after all, is what interpretation attempts to do. However, two major criticisms have been leveled against subjective interpretation. First, as stated in its classic form in 1930 by Professor Max Radin, of the University of California- Berkeley School of Law, there is no "single" person whose subjective intent we are endeavoring to discover when interpreting a statute.2 Applied to constitutional interpretation, the same objection would be that the framers and ratifiers were a large and heterogeneous group, each member of which may have had a different subjective intent. Further, even if one could surmount this problem, there Page 135 is the additional problem of how to determine the actual subjective intent of even a single drafter or ratifier. Evidentiary problems with determining internal mental intent pose problems for a subjective theory of interpretation. This is particularly true the farther one moves from the document's initial drafting, so that the judge does not necessarily share, or have experienced, the contextual background of the drafting.3

While acknowledging such theoretical objections, supporters of subjective interpretation have responded from a pragmatic perspective. In 1930, Harvard University Law School Professor Jerome Landis responded to Radin's attacks on determining "intent" or "motive." Professor Landis' response, as well as Radin's attack, focused on the problem of determining legislative intent in the context of statutory interpretation. However, as noted above, the same concern exists with the determining the intent of any representative assembly, including the framers and ratifiers of the Constitution. Professor Landis responded:

The assumption that the meaning of a representative assembly attached to the words used in a particular statute is rarely discoverable has little foundation in fact. The records of legislative assemblies, once opened and read with a knowledge of legislative procedure, often reveal the richest kind of evidence. To insist each individual legislator beside his aye vote must also have expressed the meaning he attaches to the bill as a condition precedent to predicting an intent on the part of the legislator, is to disregard the realities of legislative procedure. Through the committee report, the explanation of the committee chairman, and otherwise, a mere expression of assent becomes in reality a concurrence in the expressed views of another. A particular determination thus becomes the common possession of the majority of the legislature, and as such a real discoverable intent.4

More recently, Justice Breyer has responded to a Radin-like attack in similar terms. His comments were again focused on the legislative intent of Congress, but they are equally relevant to determining the intent of the framers and ratifiers of the Constitution. He stated:

Conceptually, however, one can ascribe an "intent" to Congress in enacting the words of a statute if one means "intent" in its, here relevant, sense of "purpose," rather than sense of "motive." One often ascribes "group" purposes to group action. A law school raises tuition to obtain money for a new library. A basketball team stalls to run out the clock. A tank corps feints to draw the enemy's troops away from the main front. Obviously, one of the best ways to find out the purpose of any action taken by a group is to ask some of the group's members about it. But, this does not necessarily mean that the group's purposes and the members' motives or purposes must be identical. The members of the group participating in the group activity - indeed, whose actions are necessary conditions for its action - may have different, private motives for their own actions; but that fact does not necessarily change the proper characterization of the group's purpose. Perhaps several key members of the faculty voted for the tuition increase in order to please the Dean. Is a better library any the less the object of the Page 136 law school's action? . . . All this is to say that ascribing purposes to groups and institutions is a complex business, and one that is often difficult to describe abstractly. But that fact does not make such ascriptions improper. In practice, we ascribe purposes to group activities all the time without many practical difficulties.5

The second major criticism leveled against subjective interpretation focuses on constitutional grounds. As phrased by Radin, even if legislative intent were knowable, that should not be viewed as having the power to bind courts, because the legislators' function is not to impose their respective wills, but to pass statutes.6 As phrased more recently by Justice Scalia:

[D]espite frequent statements to the contrary, we do not really look for subjective legislative intent. We look for a sort of "objectified" intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris. As Bishop's old treatise nicely put it, elaborating upon the usual formulation: "[T]he primary object of all rules for interpreting statutes is to ascertain the legislative intent; or, exactly, the meaning which the subject is authorized to understand the legislature intended." And the reason we adopt this objectified version is, I think, that it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawmaker meant, rather than by what the lawgiver promulgated. . . .

It is the law that governs, not the intent of the lawgiver.7

Justice Breyer has responded to this critique as follows:

The "statute-is-the-only-law" argument misses the point. No one claims that legislative history [or other evidence of congressional "intent"] is a statute, or even that, in any strong sense, it is "law." Rather, legislative history [and other evidence] is helpful in trying to understand the meaning of the words that do make up the statute or the "law."8 Page 137

In many cases, of course, practically speaking there will be little difference between the two approaches. Both subjective and objective evidence of the text will support the same interpretation in the case before the court. This is particularly true to the extent that the same sources of meaning are consulted to determine either subjective...

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